High water on the Bitterroot

There are some great aerial photos of the Bitterroot River during the recent high water posted over at www.wapiti-waters.blogspot.com.

Indy still doesn't get access issue

Editor's note: We apologize for taking so long to get to this, but May has been a busy month at Hook and Bullet. We've been distracted by end-of-the-school-year responsibilities at our jobs that actually provide income, as well as following the exploits of our favorite sports team, the U14 Flathead Force girls soccer team. Flathead's bid for a state championship was thwarted by injuries and a tough Billings team in the semifinals.

The Mitchell Slough/Bitterroot River stream access controversy spawned a cottage industry of bad journalism. Most of it fell into the category we like to call Think Tank Navel Gazing Journalism. TTNG journalism is marked by an inability to draw even the most elementary conclusions about obvious facts. A lot of this kind of failed journalism occurred in the run up to the Iraq War, when the evidence showed quite conclusively that Saddam had dismantled Iraq's weapon of mass destruction, yet the media continued to reported that rationale for invasion even after it was completely debunked. TTNG journalists are prevented from stating the obvious — the rationale for the war was a lie — and punt to the scholars in various Think Tanks who then mull endlessly the "complexities" of the issue, reinforcing the TTNG journalist's lack of conviction.

Which brings us to the latest example of TTNG journalism on the Mitchell Slough issue, published in the April 30 edition of the usually commendable Missoula Independent. The piece was titled "Muddy Waters." Get it, the issue is still clouded in complicity, despite a unanimous decision of the Montana Supreme Court which completely eviscerated the legal arguments that allowed landowners to block public access to the Bitterroot River for 15 years. Muddy Waters. It's just another example of a journalist unable to write that the sky is blue because some powerful interests in Montana say it's really green. Better side step the sky-is-blue reality entirely, and pass this clouded issue on to the hand wringing Think Tank scholars who are better equipped than us mortals to understand the color of the sky.

Muddy Waters, penned by reporter Jesse Froehling, starts with this stunning first paragraph:

This is the siphon. It’s two high-density polyethylene pipes, 36 inches in diameter, 100 feet long and buried about 15 feet under the Mitchell Slough. It’s simple enough, but yet, because of a landmark Montana Supreme Court decision, its existence required the approval of six government agencies and all of its owner’s patience.

Wrong. The approval of six government agencies before drying up a stretch of the Bitterroot River was required because Montanans long ago established laws that protect our waterways from unnecessary and harmful diversions and modifications. The Supreme Court’s ruling simply reaffirmed those laws still apply to the Bitterroot River, much to the chagrin of the landowners who have spent the last decade trying to exclude the Bitterroot River from the Natural Streambed and Land Preservation Act of 1975, otherwise known as the 310 law, and the Stream Access Law.

Or maybe it’s just that Froehling and the editors of the Missoula Independent who waved this on through to print pine for the good ole days when a Montanan could just drive his backhoe into any river or stream and get-r-done, ecosystem health be damned.

So Muddy Waters begins with what is basically a factual error, and slides further into journalism misconduct from there.

A few paragraphs later Froehling writes of the ranch manager, Lane Hutchings, who installed the siphon:

“He motions to a quiet stream—some still say it’s a ditch," but the Indy omits the obvious rejoinder: “They may still call it a ditch, but they’d be wrong.” Froehling makes this clear later in the piece when he writes: Last year, the Montana Supreme Court finally settled the issue for good, overruling the Bitterroot Conservation District and determining once and for all that the Mitchell Slough is a natural, perennial flowing stream.

Later, another factual error.

In 1975, the Bitterroot Conservation District began issuing 310 permits for the Mitchell Slough. The district continued this practice until 1991 when Randy and Robert Rose decided to go fishing.

Not true. The district continued issuing 310 permits on Mitchell Slough well into the 1990s. It wasn’t until the landowners realized the practice of receiving 310 permits directly contradicted their interest in overturning the Stream Access Law that they went back and had the Conservation District remove the Slough from 310 jurisdiction. That did not happen, as the story states, as a result of the Rose Brothers’ fishing expedition in 1991.

Again, Froehling points out his own error later in the piece when he writes:

In 1999, Jack Pfau, a Stevensville resident hoping to work on the shores of the Mitchell Slough, sent a letter to the Bitterroot Conservation District asking for clarification on the status of the Mitchell. If it was a ditch, Pfau could do whatever he wanted. If it was a natural, perennial flowing stream, he had to get a 310 permit. So, Pfau asked, which was it, a ditch or a stream?

Despite the fact that the district had issued 310 permits since 1975, the district shied away from responsibility: “This determination is the responsibility of the State Department of Natural Resources and Conservation, the State Fish Wildlife and Parks, and the State Department of Environmental Quality.”

Then, in what almost seemed like an afterthought, the district determined the status of the Mitchell Slough: “However, until these Departments take on this responsibility, the District will not require any 310 permits. This is based on the fact that the head water begins with a head gate and being that it is diverted water.”

Later, this wording that seems designed not to ruffle the feathers of access denying landowners along Mitchell Slough.

To reach the slough, the Rose brothers had crossed private property, drawing the ire of the landowners.

Actually, the Rose Brothers reached the stream at the intersection of two public right of ways, Victor Crossing road and the Bitterroot River. Maybe Froehling and the editors of the Independent have had their heads in the sand for the last decade. If so, here's a news flash: In 2002 the Montana attorney general confirmed what was common knowledge to anyone with a functioning brain — accessing streams and rivers in this fashion is perfectly legal. And in the just-completed Montana legislative session that bit of common sense was codified into statute.

The Rose brothers did, however, have to cross two fences to fish the Slough. One is the expected barbed-wire fence that usually runs along public roadways. The second is about 30 feet beyond, built, apparently so it would be an extra hassle for anglers to exercise their right to fish the Bitterroot River.

Froehling then ends this howler:

Duck hunters, as long as they stay off private property, may hunt on any public stream. Technically, a hunter could wade the stream as it winds in front of Hutchings’ house. And although the Double Fork owns the land and the water, a hunter, wading the shallow stream, could blast ducks a hundred yards away from the swing set, where Hutchings’ kids usually spend long fall afternoons. It makes Hutchings thankful that conservation districts sometimes side with private landowners. Sometimes, he says, that’s what’s best for those who use the land.

No, not technically or otherwise. Since the ownership of the land remains with the landowner, Froehling’s straw men duck hunters would need the landowner’s permission to blast ducks next to the swing set where Mr. Hutchings’ kids play. The Stream Access Law cannot be used for to hunt on private land: permission must be granted by the landowner. Maybe Mr. Hutchings is glad conservation districts sometimes side with landowners, and maybe he wants some rivers and streams to be private just like they are back in his home state of Wyoming. But personal desire doesn’t trump the law.

Here are a few of questions we wished Muddy Waters had answered:

If the diversion had worked for a decade or so, why was the siphon needed now? And why didn’t they proceed with the more environmentally friendly plan FWP proposed? Was the project retaliation for the smack down the landowners received at the hands of the Supreme Court?

If the Independent had published this story a year ago, we'd probably cut them some slack. Lord knows mistakes this bad — or worse — were made by legions of Montana journalists when it came to Mitchell Slough. But Muddy Waters was published in April of 2009, right on the heels of the Montana Legislature's historic act codifying access rights at bridges, and the Supreme Court's unwavering defense of the Stream Access Law in its 2008 decision on Mitchell Slough. Maybe folks at the Independent haven't been paying attention, but Montana is real clear on the SAL and landowners responsibility not to interfere with that access right. It's time this newspaper joins the rest of Montanans in the 21st century, where it's not OK to dry up a river because you're a salt-of-the-Earth type who displays a photograph of your family on the dashboard of your pickup truck.

Here at Hook and Bullet News we fear this isn't the last time landowners will needlessly dry up a portion of the Bitterroot River at Mitchell Slough. Heck, the landowners have been issuing threats to harm the resource if they didn't get their way on access for as long as this has been a controversy. We hope, however, that this is the last time we'll have to read one of these whiney screeds about how complicated things are down on Mitchell Slough. Here's a bit of advice for journalists interested in wading into this crystal-clear controversy in the Bitterroot Valley: read the Supreme Court decision. It calls the rationale used to block public access an "absurdity." The only reason the bogus claims for blocking access survived as long as they did was that the landowners along that portion of the Bitterroot River are rich, and they could throw money at lawyers in an attempt to make those claims stick.

Now no doubt there will be difficult issues related to access at the Slough down the road. Management is often complicated. But at the heart of this fight was one of the most dangerous assaults on Montana's Stream Access law since its inception. If the lower court ruling that blocked access had stood, the SAL would have been undermined on almost every river in the state. And requiring landowners to jump through a lot of hoops before they dry up portions of Montana rivers is a good thing. We'd like to see the Missoula Indepentdent — one of our favorite newspapers — get up to speed on that.

Bitterroot claims another

Fly shop owner Dick Galli died in a rafting accident on the Bitterroot River on Wednesday. His boat overturned when they ran into some wood in a particularly tricky stretch of the river on the south end of Hamilton.

The Bitterroot is running about 2,700 cfs at the Darby gauge right now. That's way to high to fish, and makes the wood-laden Bitterroot especially treacherous.

Wolves off the list

Wolves come off the endangered species list today, but for how long?

Great news for stream access

There have been two important developments on the stream access front in Montana in the last six months. First, the Montana Supreme Court ruled unanimously last November that the landowners who had kicked the public off a section of the Bitterroot River known as Mitchell Slough were in obvious violation of the Stream Access Law. Secondly, Gov. Brian Schweitzer yesterday signed House Bill 190 which ensures access to rivers from the bridge crossings of public roadways.

Many were slow to realize the importance of the Mitchell Slough case, which the Supremes made clear in their strongly worded opinion (authored by a conservative appointee of Judy Martz no less) was a direct assault on the SAL. Fortunately, a ragtag band of Bitterrooters led by the likes of Sen. Jim Shockley, newspaper publisher Michael Howell and former Justice of the Peace Ed Sperry, took on the wealthy landowners who for 15 years successfully denied Montanans their right to access a Montana river between the high-water marks. Eventually Trout Unlimited and the established angling community came on board, but if it hadn't been for the efforts of the Bitterroot River Protection Association, the "No Trespassing" signs would still be up.

Another access-focused organization — the Public Land/Water Access Association — led the battle to ensure the public's right to use a public right of way to access rivers and streams. Remarkably, landowners on the Ruby River argued that a public right of way narrows from 60 feet down to the width of the river when it became convienent for access deniers. The Montana Attorney General shot down that "logic" in an opinion authored in 2000. But it wasn't until this legislative session that a bill codifying what is really just common sense finally made it out of the legislature to be signed by the governor.

Hopefully, the events of the past year will serve as a wake-up call to some of the mainstream organizations which sat on the sidelines for too long, especially in the Mitchell Slough case. Access has become the most important issue for hunting and angling conservationists in Montana and much of the West. It is our central front in the battle to conserve and protect the open spaces where we play and commune with the natural world. Some have argued that conservation is a value that is somehow independent from access. We here at www.mthookandbullet.com find this line of thinking delusional. If the public is denied access, the public's dedication to conservation will crumble. Organizations such as national Trout Unlimited that want to argue they are conservation organizations, not access organizations, are facing a jump-the-shark moment. Stick with that delusion and you'll lose all credibility in the hunting/angling community.

Even though we won these two rounds you can bet the access deniers will be back. When the original Stream Access Law was passed few would have thought someone would have the audacity to go ahead and post "No Trespassing" signs on a major Montana river such as the Bitterroot. Yet that's exactly what happened, and it stood for more than a decade soley because the access deniers had the money to tie up the issue in the courts. Don't fool yourself into believing these recent victories are the final chapter in the saga of the SAL. I'm confident that as I write this, someone, somewhere in Montana with money to burn is planning the next outrage to our state's constitution.

I just hope that next time we're all on the right side from the get-go.

Skwala hatch cools for now

The Bitterroot skwala hatch came on last week just in time for spring break (this is why the staff at www.mthookandbullet.com is so fond of the education profession. But by the weekend things had gotten a little too warm and the river came up. This morning the Bitterroot was measured at 1,130 cfs at the Darby gauge. That's a great level for fast scenic floats, but too high for good fishing. If the the river comes down this week in response to predicted lower temperatures, the hatch could be back on next weekend when the weather is supposed to be nice again.

Geno does good

Cam (right, in the Huck Finn headgear) led Geno to one of his well-trained cuttbows Thursday at an undisclosed location on the Bitterroot River. The 20-plus inch fish fell to a Larkin special as the skwala hatch begins to kick into high gear.

Skwala time

Spring finally arrived in western Montana, and with it came some good skwala action on the Bitterroot River. Temperatures in the 60s warmed the river to the low 40s, which was enough to get the bugs moving. But the sunshine is also cutting lose some lower elevation snow, and the river has come up from about 450 cfs at Darby on Monday to 680 cfs and climbing Wednesday morning. Those rising flows could put off the fishing somewhat, but this is no time to be choosy about which day to launch. This is a great time to be on the Bitterroot.

Bridge access bill awaits gov's signature

The House approved the amended Bridge Access Bill approved by the Senate. With the governor's signature Montanan's right to access rivers at bridge crossings will now be ensured through statute as well as common sense.

Bridge bill clears committee

Could this be the year? The bill clarifying river access at bridge crossings cleared committee and is headed to the full Senate.

Dubious 'honor'

The Canadian Flathead reclaimed the top spot in the Outdoor Recreation Council of British Columbia's list of the 10 most threatened rivers in the province. The Canadian Flathead was just the second-most threatened river in the Council's 2008 list, after taking the top spot in 2007.

Cline Mining's proposal for a coal mine immediately adjacent to the richest bull trout spawning site in the entire North Fork Flathead River (what we call it south of the border), and BP's on-again, off-again coalbed methane plans in the drainage could destroy what is considered by many to be the wildest river in the lower 48.

No action in Senate on bridge access bill

The usual characters, or should we say character, spoke out against the bridge access bill in a Senate hearing on Thursday. Attorney John Bloomquist, who always seems to find a reason to oppose public access, led the opposition. But this bill passed by a 97-3 vote in the House, and should finally find its way to Gov. Schweitzer's desk for a signature this year.

Dam good news

The final pieces of the Milltown Dam are being removed. This spring the Clark Fork may behave like a free-flowing river again.

Setback law dies in committee

Not a big surprise, but a disappointment. The streamside setback bill has been killed on a party-line tie vote in committee.

Bridge access bill goes to Senate

Thursday the Senate Fish and Game Committee will hear public comment on the bridge access bill that sailed through the House. The Public Land and Water Access Association is urging hunters and anglers to let their legislators know they support the bill

Obama admin backs delisting

Wolves are biologically recovered in Montana. Now it's time for social and political recovery to commence. Delisting is an essential part of that process.

Wolf protest misses the mark

Hunters gathered in Kalispell over the weekend to protest continued delays in the delisting of wolves in Montana. If that was as far as it went, we'd have no problem here at mthookandbullet.com. But as is too often the case, hunters decrying the lack of wolf management (known in impolite but honest society as killing them) do as much harm to their cause as good.

Yes 2008 was a tough year for hunting, and elk and deer numbers are down in some cases. And yes, we've exceeded the wolf recovery targets for a number of years now. But when I see a bunch of hunter-orange clad nimrods waiving signs that read "No More Wolves" I worry about the the message that sends to the vast middle, the 80 percent or so of citizens that are neither hunters, nor anti-hunters. These are the folks we need to have a conversation with, to keep on our side so that they remain passive supporters of hunting rights. And we're convinced the message on display this weekend: "Kill more wolves so we can kill more deer" is a losing message.

Now you could argue that "No More Wolves" just means don't let the population get any larger, rather than re-exterminate the critters. But I don't think that's the message non-hunters hear. And that's especially the case when hunters wave signs with silly statements such as "Elk — The next endangered species" or post comments on newspaper message boards about how they kill every wolf they see.

There are complex interactions between game and predators species, and their are complex interactions between those animals and the landscapes they inhabit. As wolves have reestablished themselves in northwest Montana, they have changed the elk and deer humans are found of hunting. Elk will always be a tougher target for human hunters if those elk live in the presence of wolves. It's the difference between hunting a truly wild animal (an elk in wolf country) versus a semi-tame animal (elk that only have too look out for predators in the fall).

Yes, let's manage, I mean kill, more wolves to keep that population in check and avoid the kind of boom-and-bust ungulate population cycles more common in unmanaged systems. But hunters need to remember wolf reintroduction is popular with the public, and necessary to restore our ecosystems to a more wild state. And if that wasn't our goal, we'd spend our falls pursuing trophy elk in enclosed game parks where we could count on success. Oh yeah, Montanans rightfully ended that dreadful practice in our state years ago.

Streamside setbacks

A column on the Big Sky Rivers Act, which would control development along rivers in western Montana.

Idaho moves on wolf kill in Lolo

Idaho Fish and Game is proposing to kill about 100 wolves in the lands that border Montana on the Lolo National Forest. While removing the wolves won't fix all of the problems with declining elk numbers in the Idaho panhandle, it will help. Elk and wolves can coexist when the habitat is in good shape, but the quality of the elk habitat in this country is on the decline.

Reducing the burgeoning wolf population here should be part of an overall landscape restoration effort. Depress the wolf population, reintroduce fire to improve elk grazing conditions, and keep a lid on elk permits until the population rebounds.

By the way, there's nothing wrong with a state wildlife agency trying to boost ungulate populations and with it, hunter success rates. Hunters and anglers remain the primary funding source for game and fish departments across the West. Happy hunters pay for wildlife conservation in western states.

Streamside setbacks get state hearing

The House Local Government Committee will consider a bill that would establish streamside setbacks on 10 rivers in Montana. Setbacks will happen, eventually. But I'm not sure there's enough wind behind the idea this legislative session.

The bill has rekindled the predictable debate about property rights in the Bitterroot Valley, where there has been vocal opposition to setbacks, as well as some of the most damaging examples of streamside development in the state.

Let's not forget, if you build along rivers and streams, you eventually need to armor the bank in some way to protect your dream home. When you do so, often with rip rap, you simply shove the erosion problem off on your downstream neighbor. And you usually intensify the probelm in the process. This, of course, is where your right to swing your fist colides with my right not to be punched. Property rights are not absolute. There is a balence to be reached between the absolute right to build where ever and what ever you want with the rights of neighbors not to have their property harmed in the process.